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Category: Criminal Page 33 of 39

Alberta Court of Appeal Declines to Appoint Counsel in Extradition of Jorge Sosa

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On March 21, 2012

In Criminal, Human Rights, International Law

Decision considered: United States of America v Sosa, 2012 ABCA 56

Emma McAuliffe wrote a blog expressing reasons why Jorge Sosa should face war crimes charges in Canada before being extradited to the United States (see: Why Canada should Address Jorge Vinicio Orantes Sosa’s Alleged War Crimes before Extraditing Him to the U.S. ) Nevertheless, Chief Justice Wittmann granted an extradition order on September 2, 2011. Sosa filed a Notice of Appeal on October 19, 2011, and a second Notice of Appeal on January 24, 2012. Since the appeal period allowed for under the Extradition Act, SC 1999, C 18 (s 50) would have expired on October 2, 2011, Sosa asked for an extension of time to proceed with the appeal. Alberta caselaw indicates that Sosa must demonstrate that he has a reasonable chance of success on the appeal before the extension will be granted (see: R v Truong, 2007 ABCA 127).

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British Columbia Supreme Court Releases Reference Decision on Polygamy – One Alberta Connection

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On February 15, 2012

In Constitutional, Criminal, Family

By: Linda McKay-Panos

PDF Version: British Columbia Supreme Court Releases Reference Decision on Polygamy – One Alberta Connection

Case Commented On: Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588

In 2005, Brian Seaman, Melissa Luhtanen and I, on behalf of the Alberta Civil Liberties Research Centre (ACLRC), were engaged by Status of Women Canada to research and comment on specific issues with regard to Criminal Code section 293 (anti-polygamy provision). Our conclusions may have been surprising to some people because it appeared that we erred on the side of equality at the expense of civil liberties. However, the recent British Columbia Supreme Court (BCSC) decision, at least temporarily, as it may be overruled on appeal, seems to have vindicated our position. Looking at the list of intervenors (11 of them) and the length of the judgment itself, it seems that the Court dealt with the issues in a comprehensive manner.

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Blow over? Think twice before blaming it on the flu.

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On December 21, 2011

In Criminal

PDF version: Blow over? Think twice before blaming it on the flu. 

Decision considered: R v Kasim, 2011 ABCA 236.

The Respondent claimed to have drunk no more than 3 or 4 beers between 7 and 8:30 p.m. on September 18, 2008. He was behind the wheel soon after. At about 9 p.m. he complied with a lawful demand for an Intoxilyzer breath sample and the two samples he provided measured 100 mg percent, or 20 mg percent over the legal maximum of 80 mg of alcohol in 100 millilitres of blood. At trial the Respondent testified that his body temperature was elevated as he was suffering from the flu or a fever that day. This testimony was corroborated, and the trial judge accepted it. The Respondent’s expert witness, Dr. Malicky, testified that given the Respondent’s elimination rate, and an elevated body temperature, “his blood alcohol level at the time should have been approximately 36 mg percent if he had three containers of beer, and 60 mg percent if he had four containers of beer” (R v Kasim, [2010] AJ No 969, para 64). The Respondent argued that the test results were therefore askew and that raised a reasonable doubt as to whether he the violated the Criminal Code (RSC, 1985, c C-46). Both the Provincial Court judge and Queen’s Bench summary conviction appeal judge found for the Respondent. By consent order the Crown appealed to the Court of Appeal on a single issue: “The summary conviction appeal judge erred in law in her interpretation of s. 258(1) (c) of the Criminal Code” (CA decision at para 7). These Criminal Code provisions set out presumptions that subject to certain time and other limitations Intoxilyzer readings of blood alcohol are accurate. The provisions also limit permissible challenges to the presumed accuracy.

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The Repeal of the Long Gun Registry: A Violation of the Federal Government’s Obligations Concerning Violence Against Women?

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On December 8, 2011

In Constitutional, Criminal, Family, Human Rights

By: Jennifer Koshan

PDF Version: The Repeal of the Long Gun Registry: A Violation of the Federal Government’s Obligations Concerning Violence Against Women?

Legislation considered: Bill C-19, An Act to amend the Criminal Code and the Firearms Act (“Ending the Long-gun Registry Act”), 41st Parliament, 1st Session

December 6, 2011 was the National Day of Remembrance for Violence Against Women, which marked the 22nd anniversary of the Montreal Massacre. The Globe and Mail‘s Jane Taber indicated that “government MPs [were] purposely shut out from officially speaking at and attending an event on Parliament Hill to honour the 14 young women who were shot dead in 1989,” because the government is about to repeal the long gun registry (see Bill C-19). The Montreal Massacre was one of the pressure points for the registry, as was the use of firearms in crimes of domestic violence. When the Alberta government challenged the constitutionality of the registry, which was implemented via the Firearms Act, SC 1995, ch 39, as an amendment to the Criminal Code, the Supreme Court found that it was properly enacted under the federal government’s criminal law powers (see Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 SCR 783 at paras 43, 59). The enactment of the law creating the registry was constitutional; but is its repeal unlawful? I think an argument can be made that the federal government’s abolishment of the long gun registry is unconstitutional on Charter grounds, as well as contrary to international law.

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Pleading Fairly

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On July 18, 2011

In Criminal, Ethics and the Legal Profession

PDF version: Pleading Fairly 

Case considered: R. v. Nixon, 2011 SCC 34

Introduction

In its June 3, 2011 Throne Speech, the Canadian government announced its plan to introduce an omnibus crime bill. Based on the limited information provided in the Speech, it appears that this legislation will increase the sanctions for some crimes, and eliminate judicial discretion on some matters of criminal sentencing:

Our Government will move quickly to reintroduce comprehensive law-and-order legislation to combat crime and terrorism. These measures will protect children from sex offenders. They will eliminate house arrest and pardons for serious crimes. They will give law enforcement officials, courts and victims the legal tools they need to fight criminals and terrorists. Our Government will continue to protect the most vulnerable in society and work to prevent crime. It will propose tougher sentences for those who abuse seniors and will help at?risk youth avoid gangs and criminal activity. It will address the problem of violence against women and girls (Throne Speech, p. 12).

The Throne Speech emphasized that the purpose of this legislation would be to protect “the personal safety of our citizens” and to “place the interests of law-abiding citizens ahead of criminals” (Throne Speech, p. 12).

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